Canada and the U.S. require cross-border truck drivers to be vaccinated against Covid-19, but fleets still need to take care when developing the underlying vaccine mandates in their workplaces.
“The first thing is to make sure you have a policy,” said Carole McAfee-Wallace, a partner in Toronto-based Fernandes Hearn, in a presentation during the firm’s annual conference on transportation law. This even includes cases where the mandates are required by a government directive.
Canada began requiring border-crossing truck drivers to be vaccinated Jan. 15, while the U.S. mirrored those rules on Jan. 22.
The rules are undeniably easiest to introduce to new recruits, she said. The mandates are in place before they walk through the door. But in a non-unionized workplace, placing an unvaccinated driver on unpaid leave could lead to a constructive dismissal claim because the rules were different when they were first hired.
Defending against such challenges will involve identifying the policies, and giving employees enough time to comply with the rules.
“It should also include a regular review period, so it’s clear to employees this may not be forever,” McAfee-Wallace said, noting such reviews should be every three or six months.
Corporate vaccination policies have been upheld in a handful of recent challenges in the form of union grievances, she added.
The approach to vaccine mandates could also play a role in whether unvaccinated drivers are eligible for Employment Insurance. The guidelines for completing records of employment were changed in December, and there will be a follow-up if an unvaccinated driver is suspended or terminated.
That review will come down to two questions. “Was there a clearly communicated workplace policy about mandatory vaccination, and was it clear in that policy what the consequences are?” she asked. If so, the employee may not be able to collect Employment Insurance.
Employers who instead want to place drivers on an unpaid leave may want to speak to benefits providers to determine if employee benefits can continue, McAfee-Wallace added.
It remains to be seen if employers can terminate the unvaccinated drivers without notice, she said. There’s also a question of whether a driver who refuses to be vaccinated will “frustrate” an employment contract because they can’t cross the border. If that definition is ultimately accepted, employers wouldn’t need to pay notice because they are unable to employ the driver.
“It hasn’t been tested,” she warned. “In the employment context it’s very difficult to prove frustration.”
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